On The Limitation And Relief Of Secured Creditor's Rights In Bankruptcy Reorganization

China's reorganization system has shortcomings,which reflects a tendency to limit the secured claims and insufficient protection.The author believes that it is necessary to improve the design of relevant systems,reduce the restrictions imposed by the reorganization system on secured claims,expand the channels for the interests of secured creditors,and provide adequate protection for secured claims.This article is divided into four parts.The first part outlines the legitimacy of restricting secured claims during the corporate restructuring.First clarify the definition of "secured claims with property" in the reorganization system,and secondly,from the root and direct causes,discuss that the secured claims should be restricted during the reorganization.The contradiction between reorganization and secured claims is rooted in the value orientation of the two systems.The reorganization system requires the retention of corporate property in order to get rid of the predicament,while the secured debt requires the realization of corporate property to repay the debt.The logical starting point of the reorganization system,"Operational Value Theory",also provides a theoretical basis for restricting secured claims,and maintaining the integrity of the property helps increase the overall value of the property.Finally,the public pond theory also requires that creditors need to act in concert to bring the greatest benefit to all creditors.The second part introduces the legislative situation of China's restructuring system to restrict secured claims.Both the mandatory rules that focus on the disposal of property and the autonomous rules that focus on the reorganization plan have imposed excessive restrictions on secured claims,and the relief provided to secured creditors by the bankruptcy law is also difficult to fully protect the interests of secured creditors.The author believes that there are problems of too large freezing scope and lack of interest compensation in the mandatory rules;there are problems in the autonomrules in which the review standards for the draft reform are unknown,and the security owner lacks channels for expressing claims;the security rights in the relief provided by the bankruptcy law There are also unreasonable scopes for compensation and methods of compensation.The third section outlines the path to a balance of interests between reorganization and secured claims.The bankruptcy law should clearly define the atypical private law,give full play to the role of group autonomy,enhance the role of secured creditors in group autonomy,and achieve a balance between the goal of recovery and the protection of creditor's rights.The fourth part discusses the improvement of guarantee rules in the reform from two perspectives: property and autonomy rules.At the property level,it should be clear that the automatic freezing should be based on the necessary conditions for reorganization;the interest of the guarantor should be partially compensated to the value of the secured property.At the governance level,the court should conduct a substantive review of the draft reorganization plan and grant the secured creditor the right to propose a draft reorganization plan under special circumstances.In the relief of secured creditor's rights,the scope of compensation should be clearly defined,and relief methods such as alternative guarantees and cash payments should be added.